Director of Public Prosecutions v Ho

[2015] VCC 149

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-02078

DIRECTOR OF PUBLIC PROSECUTIONS

v

STEVEN HAI HO

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	19 February 2015
CASE MAY BE CITED AS:	DPP v Ho
MEDIUM NEUTRAL CITATION:	[2015] VCC 149

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K. Argiropoulos
For the Offender	Ms K. Kothrakis

HER HONOUR: 

1Steven Kim Hai Ho, you have pleaded guilty before me to cultivating a narcotic plant, namely cannabis, in a quantity that was not less than a commercial quantity, one charge of theft of electricity and one charge of possessing a drugs of dependence, namely methylamphetamine. 

2The facts underlying your offending are as follows.

3In mid-February 2014 you moved into rental premises at 1 Koonawarra Street, Clayton, signing a rental agreement and providing a cash bond and paying rent on the premises every three months.

4On 2 September 2014 police executed a search warrant on those premises and found the entire house was converted to the use of growing cannabis hydroponically.  No-one was at the house when police attended. 

5The four rooms of the house were all devoted to growing cannabis plants at various stages of maturity, each room being set up with the usual paraphernalia necessary for the production of a hydroponically grown cannabis crop, such as fans, exhaust ducts, heat lights and carbon filters.  A large quantity of various fertilisers and plant feeding agents were also found and a CCTV camera system was in place throughout the house.

6An electrical bypass was located in the roof cavity above the electrical meter box and it was discovered that electricity used for the production of cannabis crops had been bypassed over a long period of time, resulting in a loss to the electricity company of around $49,000. 

7A total of 101 cannabis plants weighing 47.43 kilograms were seized from the premises. A commercial quantity of cannabis, as defined by the Drugs, Poisons and Controlled Substances Act, is 25 kilograms or 100 plants. Therefore, the amount of cannabis found was almost double that of the minimum commercial quantity.

8The crops found comprised 30 plants at about the ten to 13 week stage, the remainder being seedlings aged two to three weeks with some at the four to six week stage.

9You, Mr Ho, apparently drove past the house while police were conducting the raid and then voluntarily attended the Glen Waverley Police Station on 3 September to hand yourself in.

10In your interview with police you said you had handed yourself in for questioning in relation to "cultivation, whatever it's called, or - hydroponics", but thereafter entered "no comment" answers to all questions asked.  However, you entered a plea of guilty at a very early stage at committal mention, and it is conceded by the prosecution that your plea of guilty was entered at the earliest stage.

11I now turn to your personal circumstances.

12You are 32 years old, the youngest of three children born to your parents.  You came from Malaysia to this country when you were aged about four.  You have an older brother aged 37 and an older sister aged 47, who both work in the IT industry, your sister working in Singapore.  Your father worked selling seafood in Australia, he and your mother having brought your brother and sister and yourself here in order to obtain better educational opportunities for you all. 

13You endured some initial bullying when you attended primary school in Cheltenham, where you family initially settled, but that passed, you became a good student and a sports enthusiast, involving yourself in both football and cricket.

14You attended the Cheltenham Primary School and then Year 7 at Cheltenham Secondary College, when your family bought a house in Burwood, they having previously rented, and you were moved.  You then attended the Mount Waverley Secondary School from Year 8, where you had some difficulty breaking into established friendship groups and discovered the school was less focused on sport than your previous school had been.  Your interest in school waned and you left at the end of Year 10 in the face of heavy parental opposition, your older brother and sister both having completed Year 12 and undertaken tertiary courses.

15You have always demonstrated a good work history, working six days a week on a part-time basis in a paper round when you were 15, and then undertaking a job at a firm named Eco Cartridges, where you worked as a printer on nightshift.  You were retrenched from that job after about nine months when the nightshift was abolished, then took up a job with a similar firm for another 12 months.  You then undertook a pre-apprenticeship in civil construction and obtained a job at a firm called United Civil Construction, where you worked for six to seven years, engaging in excavation of roads and drainage with that organisation. 

16You lived at home until 2013.  Your downfall was as a result of your drug use.  You tried marijuana when you were aged 14 or 15, but this never became a problem drug for you.  When you were about 22 you used amphetamines for about three years, but then in 2009 were introduced to the destructive drug, methylamphetamine, or ice, which rapidly became an addiction.  You used on a daily basis, became unreliable at work, suffered the usual mood problems that accompany extensive ice use and eventually were sacked from your job.  By then you had become entrenched in a drug lifestyle both in terms of your use and the people that you mixed with you.

17You made some attempts to free yourself of your drug use, staying abstinent for a period of between nine and 12 months in 2010 to 2011, in that time obtaining another job with a firm called Build Q, but eventually flipped back into mixing with those friends and resumed drug use at an even greater level than you had previously.  Matters were made worse by a relationship you began in about 2011, which lasted for two years, as your girlfriend was also a drug user and you and she eventually moved in together at the house where the drug crop was eventually located by police.

18You felt the need to move out of home because you found it increasingly difficult to hide your drug use from your parents.  They were apparently strict people and, although loving and supportive of you, would have been extremely disapproving of your drug use, and initially you and your girlfriend were able to pay the rent on the house in Clayton by splitting the rent between you and meeting it with your Centrelink payments. The problem was that your ice habit had become ever greater to the point that you could not afford it and eventually began buying the drug on credit to the point where you owed $15,000 to your dealers.  They began pressing you for repayment and eventually it was suggested that you could pay off your debt if you turned your house over to developing hydroponic cannabis crops. 

19The set-up in the house was apparently paid for and installed by those for whom you were growing the drugs, as was the electrical bypass.  Your job was to cultivate the crops.  You continued in this lifestyle for a period of about two years.  In that time your methylamphetamine use continued on unabated.

20Once you were arrested in relation to these matters, you moved home to your family and determined that you were going to wean yourself off this destructive drug.  You did this by first visiting a friend in Queensland, who was not a drug user, and began, I suppose what could be termed, your detoxification.  This you successfully undertook, apparently returned home and continued in this fashion. 

21Your counsel informed you had two groups of friends, one of them a drug using group, (and I note that the house that you rented was owned by the sister of a friend you had gone to school with, and I am deducting from that that your residence in this house came about because of that group of friends that used drugs, as did your eventual cultivation of the crops within it).  The second group of friends you have are not drug users and you determined that they would be the group you would then mix with.  You changed your telephone numbers so you were unable to be contacted, and it appears that your friends from the drug using group were not aware of your parents' address and so were unable to contact you.

22I received helpful information from your father, who gave evidence on the plea, to the effect that since returning to live with your parents you have rarely gone out, are far more open to talking to your parents and have expressed shame and remorse over involvement in this criminal offending.

23You do have a prior criminal history, but it is old and, in my view, not relevant to the offending which has brought you before this court.

24In 2001 you were dealt with, both at the Dandenong Magistrates' Court and then on appeal in the Melbourne County Court, on charges of recklessly causing serious injury and being unlawfully on premises, to which you were eventually placed on an adjournment without conviction.  That apparently involved a fight at a house party.  Then in 2005 you were fined on a charge of wilfully damaging property where a car window was broken after a fight outside a nightclub.

25The offending you engaged in was extremely serious.  Persons who come before a court, having been involved in cultivation of a drug in a quantity that you have, can almost inevitably expect to be dealt with by way of a sentence of imprisonment to be immediately served. 

26I am satisfied that you are remorseful for your offending.  Your father gave evidence of it.  It was further evidenced by your voluntary attendance on police and your early plea of guilty and you are entitled to a discount in relation to those matters.  I accept that you have a good work history and that your involvement in this offending arose directly out of your methylamphetamine habit.  I note that this drug was found at the premises and underlies Charge 3 on the indictment.  It is clear that, on the instructions to your counsel, you have been engaged in this particular offending for an extended period of time, although I can only sentence you in relation to the drugs which were found in the house when police raided it. 

27Hydroponic cannabis is not an innocuous drug.  It can cause a great deal of damage.  It is an extremely powerful form of cannabis.  It can be responsible for the onset of various psychiatric illnesses and is often a gateway drug for persons, that is, it is often the first point of call for use by people who then go on to develop much more serious drug habits. 

28The prevalence of hydroponic crops in houses such as that found in your own home is of extreme concern in the community and courts are expected to sentence in a way in which both general deterrence and specific deterrence play a prominent role. 

29General deterrence involves sentencing by a court which sends out a message to those in the community that, if they offend in the same way, they can expect to be dealt with severely. 

30I am satisfied that you have yourself attended to your own drug problem.  You come from a good and supportive family.  Your father gave evidence that you can continue to live with he and your mother.  Your mother was apparently unable to attend court because of her distress over this offending.  Indeed, you come from a family which would never have expected, I am satisfied, to see one of its members in the County Court charged with this serious criminal drug offending. 

31The quantity of drugs found at the house have led me to the conclusion that I should deal with you by way of a sentence of imprisonment to be immediately served, but because I am satisfied that you have good prospects for rehabilitation, because of the efforts you have made for yourself, because of your generally good background involving a solid work history, I am satisfied that that term of imprisonment should be lesser than would otherwise be the case and that you should also be placed on a community corrections order, for which you have been found suitable.

32Could you stand up, please.

33

I am going to make this an aggregate sentence because, in my view, the offences all pretty much arise from the same factual basis and in the same timeframe.  I am going to sentence you to an aggregate term of six months' imprisonment, following which, with your permission, because you have to agree to be placed on a community-based order, you will released on a

community-based order for a period of two years.  I need to explain to you what the conditions of a community corrections - sorry, it is a community corrections order - what the core conditions of a community corrections order are, together with the special conditions that I intent to impose.  I should note that you have been found suitable for placement on such an order.

34Whilst on the community corrections order, you must not commit any offence punishable by imprisonment inside or outside Victoria.  You must report to the Community Corrections Office within two days of being released from imprisonment.  Whilst on the order, you may not leave Victoria without the permission of a Community Corrections officer.  You must inform the Community Corrections Office of any change of address or employment within 48 hours of that change.  You must obey all lawful directions of the Community Corrections Office and you must report to and receive visits from the Community Corrections Office as directed. 

35Are you prepared to be placed on this order?

36OFFENDER:  Yes, Your Honour.

37HER HONOUR:  Thank you.  I am also going to order that you undertake 150 hours of unpaid community work on the order.  You are also to be assessed and receive treatment for drug use.  You must also be assessed for and receive treatment for any mental problems. 

38It was noted by psychologist, Carla Lechner, whose report was tendered on the plea, that you are suffering from an ongoing depressive condition which also needs attention.  All right.  We will just prepare the papers that you need to sign.  Thank you, have a seat.

39MS KOTHRAKIS:  As Your Honour pleases.

40HER HONOUR:  Thank you.  I should also add that your counsel gave an extremely thorough and helpful plea in this matter and I am grateful to her.

41MS KOTHRAKIS:  Thank you, Your Honour.

42HER HONOUR:  Yes, thank you.  I am also ordering that police obtain a DNA sample by way of a saliva swab.  I need to inform you, Mr Ho, that if you refuse to provide that sample, police can use reasonable force in order to obtain it. 

43In addition, I am also going to order - I am sorry, I forgot to - there will be a condition of supervision and there will be judicial monitoring at six month periods, which means you have to come back to court so I can see how you are going, Mr Ho.  All right?

44I am also ordering that you pay compensation in the sum of $49,000 to United Energy.  They are all the orders.  I will hand you back the photographs, Madam Prosecutor.  Thank you very much.

45MS ARGIROPOULOS:  Thank you, Your Honour.  Your Honour is just required to also make a s.6AAA declaration.

46HER HONOUR:  No, not if I handed down a community corrections order, because I have also - - -

47MS ARGIROPOULOS:  I'll double check, but I think because the custodial - - -

48HER HONOUR:  All right.  Pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have sentenced you to a term of imprisonment of 18 months and ordered you serve a minimum term of 12 months.

49COUNSEL:  As Your Honour pleases.

50HER HONOUR:  Thank you for that.  They can go back to the prosecution, thank you.  Yes, thank you.  We will get you to sign that, thank you, Mr Ho.

51Yes, thank you.  Good luck with that, Mr Ho.  Thank you very much. 

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